BC Expert: Addressing Middle East War Crimes

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Barrozo specializes in children's rights in domestic adoption and international adoption; rights of individuals with mental disabilities, international criminal law, and international law. He is currently writing a book called, Law as Moral Obligation. Barrozo is an active advocate for the rights of the neurodiverse and the un-parented, appearing before international bodies such as the Inter-American Commission on Human Rights and the United Nations. His writings have appeared in publications both in the United States and Brazil.

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With Israel and Hamas both being accused of war crimes by the U.N. High Commissioner for Human Rights, the question turns to: now what?

“The first question is, who has jurisdiction?” says Boston College Law Assistant Professor Paulo Barrozo, an expert in international criminal law. “What international actors might take the next step? How do you give bite to those laws that prohibit the kinds of conduct that the High Commissioner indicated may be taking place?”

Approximately 1,400 people, mostly Palestinian civilians, have been killed in the 24-day old conflict. The U.N. says that by launching from and targeting rockets to heavily populated areas both sides are committing "a violation of international humanitarian law, therefore a war crime." At first glance, jurisdiction would seem to reside in the International Criminal Court – The Hague. But that has limitations.

“Neither Israel nor the Palestinian Authority are members of the International Criminal Court,” says Barrozo. “When the conflict takes place in territory not in the jurisdiction of the International Criminal Court, which is the case here, the United Nations Security Council has the power to refer the case to the prosecutor at International Criminal Court for further investigation and to press charges should indications of criminal acts be present.”

That’s where it gets murky – the United States is one of Israel’s strongest allies and while it’s asking its Mideast friend to do more to protect civilians, it’s likely to veto any efforts within the Security Council to bring perpetrators to justice.

“The difficulty here is, I don’t think the Security Council would ever refer the case – I’m pretty confident the United States, and maybe others such as the United Kingdom and France, would veto such a resolution referring the case to the International Criminal Court’s prosecutor,” says Barrozo.

With no immediate criminal consequences for either side, the reality is, any war crimes committed may go on unpunished.

“But criminal law is not the only deterrent or sanction mechanism in our globalized world,” says Barrozo. “Careful and impartial observers, and increasingly everyone else, see a mounting and profound reputational damage to both Israel and Hamas. In important and long lasting ways, both sides have already lost their cases and the global reputational sanction will not fail to fall upon them.”